Mr X and the Department of Education and Science

Case 020240. Request for records concerning an audit of an Institute of Technology carried out before the commencement of the FOI Act - whether such pre-commencement records related to personal information about the requester - section 6(5)(b) - whether release of the records could reasonably be expected to prejudice the effectiveness of audits conducted on behalf of the Institute concerned or the procedures or methods employed for the conduct thereof - section 21(1) (a) - public interest

Case Summary

Facts

The requester applied to the Department of Education and Science for pre-commencement records of a special investigation of an Institute of Technology of which he was a member of staff. The Department originally refused access to records on the basis that section 6(5)(b) did not apply and that sections 20(1) and 26(1) applied to the records. Following discussions with this Office, the Department changed its position and stated that section 6(5)(b) applied to some of the records, but that section 21 also applied to them.

Decision

Having examined the records to determine whether section 6(5)(b) applied to them, the Commissioner found that of sixteen records, in which the requester's name or references to him could be found, 3 contained personal information about him. One was a personnel record created not more than 3 years before the commencement of the Act. Two further records were notes of interviews with staff of the Institute, taken during the course of the investigation, parts of which contained the views or opinions of another person about the requester. The remaining records were not personal information about the requester due to the fact that he was a member of staff of a public body at the time the Commissioner's decision was made and the first and third exclusions to the definition of personal information in the FOI Act applied.

The Commissioner explained that section 6 of the FOI Act, which confers a right of access on every person to records held by public bodies, provides at sub-section 7 that nothing in section 6 shall be construed as applying the right of access to an exempt record. The Commissioner found that the investigation was an investigation within the meaning of section 21(1)(a) of the FOI Act. He found that a key component in the investigation was the receipt of information by the Department, from staff of the Institute, in confidence and that its release would be a breach of confidence. While making the point that persons giving information to an investigator or auditor are not always entitled to expect confidentiality, the Commissioner found in this case that part of the procedure or method of the investigation included the receipt of information, in confidence, through individual interviews. He found that the release of the two records being notes of interviews containing personal information about the requester, given in confidence to the Department in the course of this particular investigation, would prejudice the procedures or methods employed for the conduct of such investigations in the future and that section 21(1)(a) applied to them. He found that there was no public interest in granting access to the records which outweighed the public interest in ensuring that investigations such as the one in question were not prejudiced. With regard to the personnel record, the Commissioner found that section 21 did not apply to this record as it was not created in the context of the investigation. He decided that the requester should have access to that record.

Date of Decision: 19.08.2002

Our Reference: 020240

19.08.2002

Mr. X

Dear Mr. X,

I refer to your application under the Freedom of Information Act, 1997 (the FOI Act), for a review of a decision of the Department of Education and Science (the Department) on your request for records related to an investigation of [name of Institute of Technology] carried out by the Department. Your original request to the Department of 21 August 2001 refers.

Background

I have now completed my review of the Department's decision. In carrying out that review I have examined the submission made by the Department explaining their reasons for refusing you access to the records sought and I have examined correspondence between yourself and the Department on the matter. I have also examined all of the records at issue. I note that on 21 May 2002 you were invited to make a submission to my office on your case but that you chose not to do so. I have decided to conclude this review by making a formal decision.

Scope of Review

The Department has identified 51 pre-commencement records, each comprised of several pages, that fall within the scope of your request and has provided copies of the records to my office. The records are in 5 categories and are numbered within each category as follows:

Category

Category Label

Record Numbers

Meetings

M

1-22

Documents

D

1-6

Other Issues

O

1-9

Internal Memos

I

1-13

Report

R

1

This review is limited to deciding whether the Department's decision to refuse you access to these pre-commencement records is justified.

Findings

Department's Arguments

In its submission to my office the Department argued that section 6(5)(b) did not apply to these records. It also argued that section 20(1), which provides that a head may refuse to grant a request if the record concerned contains matter relating to the deliberative processes of the public body concerned, and that section 26(1), which protects records given to a public body in confidence, applied. Following discussions with an official of my Office, the Department agreed that the particular exemptions claimed by it did not apply to the records. It stated that section 6(5)(b) applied to some of the records but thought that section 21 also applied to them. Given this change in the Department's position I do not consider it necessary to deal with the Department's arguments as set out in its written submission.

Section 6(5) - Access to Pre-Commencement Records

Having examined all of the records in this case, I can confirm that all of the records were created prior to the commencement of the FOI Act. Under section 6 of the FOI Act, public bodies (in this case the Department of Education and Science) are not generally obliged to give you access to records created before the commencement of the FOI Act (21 April 1998). There are two exceptions to this which are set out in section 6(5) of the FOI Act. That section states that access may be given in two circumstances:

where it is "necessary or expedient" to understand records created after 21 April 1998 (section 6(5)(a)), or

if the records relate to personal information about the person seeking access to them (section 6(5)(b)).

You have not made any submission to my office that access to the records requested is necessary to understand records created after 21 April 1998. I am not aware of any records created after the commencement of the FOI Act in respect of which it could be said that access to the present records is necessary or expedient in order to understand them. I find, therefore, that section 6(5)(a) does not apply in this case.

I have examined each record in order to establish whether section 6(5)(b) applies. Personal information is defined in section 2 of the FOI Act as including (a) information about an identifiable individual that would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or (b) information held by the public body on the understanding that it would be treated as confidential. As well as the definitions at (a) and (b), the FOI Act goes on to list a non-exhaustive list of 12 categories of information that is personal information. This list includes information relating to an individual's financial affairs, medical history, employment or employment history, age, sex, property, tax affairs, as well as "the views or opinions of another person about the individual". It also includes information in relation to the individual in a record falling within section 6(6)(a), i.e. personnel records created not earlier than 3 years before the commencement of the Act. These categories of information must also satisfy the requirements of either (a) or (b) above in order to meet the definition of personal information.

The definition of personal information specifically excludes certain types of information. Where a person occupies or occupied a position as a member of staff of a public body, the name of the person or information relating to the position or its functions, or anything written or recorded in any form by the individual in the course of the performance of his or her functions is not considered to be personal information (FOI Act, Section 2, Exclusion (I)). Equally, the views or opinions of a person in relation to a public body, the staff of a public body or the business or performance of the functions of a public body are not considered to be personal information (FOI Act, Section 2, Exclusion (III)).

At the time of the investigation you were employed by [name of Institute of Technology]. I understand that you continue to be employed by that body which is a public body for the purposes of the FOI Act. Decisions taken by me in my role as Information Commissioner are de novo decisions. Accordingly, my decisions are made in the light of the facts and circumstances applying at the date of my review, and not those facts and circumstances pertaining on the date of the original decision. At the time of my review both the Department and [name of Institute of Technology ] are public bodies for the purposes of the FOI Act and I am not obliged to consider the fact that at the time of your original request [name of Institute of Technology] was not a public body for that purpose.

Records

I have identified sixteen records in which your name or references to you can be found.

Records I002-I006 and I008-I013

Ten of the sixteen records are internal memoranda written to you or by you in your official capacity as [title of office held at Institute of Technology] (records I002 -1006 and I008 -I012). These records are not personal information about you. As the records are pre-commencement records and the information in the records does not relate to personal information about you, I find that section 6(5) (b) does not apply and that you do not have a right of access to these records under the FOI Act.

One of the sixteen records (I013) comprises internal memoranda (which were either addressed to you or copied to you) and a letter to your solicitor from the Personnel Officer all of which were created in connection with a dispute between yourself and [title of official at Institute of Technology] in connection with [subject of dispute]. Subject to my findings under section 21(1)(a) (below) you have a right of access to this record as a personnel record created not more than 3 years before the commencement of the Act.

Records M006, M009 and M015

You specifically requested copies of notes of your interviews with Department of Education officials during the course of the investigation (records M006, M009 and M015). Having examined these records I find that, by virtue of the third exclusion to the definition of personal information described above, they are not personal information about you. As the records are pre-commencement records and the information in the records does not relate to personal information about you, I find that section 6(5)(b) does not apply and that you do not have a right of access to these records under the FOI Act.

Records M019 and M020

Parts of records M019 and M020 (3 lines in total) are personal information about you by virtue of the fact that they contain the views or opinions of another person about you and involve an evaluation of the performance of your official functions. Subject to my findings under section 21(1)(a) (below) you have a right of access to these parts of the records.

Section 21(1)(a)

I should begin by explaining that Section 6 of the FOI Act, which confers a right of access on every person to records held by public bodies, provides at subsection 7 that "Nothing in this section shall be construed as applying the right of access to an exempt record". It can happen, for example, that where personal information is contained in particular records access to the person to whom the information relates cannot be granted because the records are exempt under another section of the FOI Act. For example, in Case Number 98169, Ms ABY and the Department of Education and Science, I found that a pre-commencement record which contained personal information about a requester was exempt under section 21(1)(a) as the release of the record could reasonably be expected to prejudice the procedures adopted by the Department for the investigation by it of complaints against teachers. I must, in this case, consider whether any other provision of the FOI Act renders the records in question exempt.

The records in question are records of a special investigation carried out by the Internal Audit Unit of the Department into [name of Institute of Technology] which resulted in the presentation to the Minister for Education and Science of a special report. The investigation was carried out by the Department's Internal Audit Unit in accordance with section 14(2) of the Regional Technical Colleges Act, 1992. I am advised by the Department that this was a special investigation requested by the Minister and was not a standard internal audit. Having examined the records I am satisfied that this is the case. I am also satisfied that the investigation in question was an investigation within the meaning of section 21(1)(a) of the FOI Act. For this reason I will consider whether section 21 (1)(a) applies to the records. This section allows a head, subject to consideration of the public interest, to refuse to grant a request made under the Act if access to the record concerned could, in the opinion of the head, reasonably be expected to -

"prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of the public body concerned or the procedures or methods employed for the conduct thereof..."

While it did not rely on section 21(1)(a) in its decision or written submission to my Office, the Department did, in arguing a case for section 26(1)(a), state that the investigation was a very complex one and that much of the information disclosed in the course of the investigation was disclosed on the basis of strict confidentiality. The special report to the Minister, at section 15.3.11, states unequivocally that information was provided to the investigators in strict confidence and that an assurance of confidence was given in this regard.

In determining whether section 21 (1)(a) applies, I must first identify the potential harm to the functions covered by the exemption that might arise from disclosure. That is, whether the effectiveness of an investigation of this type to produce or lead to a result of some kind could reasonably be expected to be prejudiced or whether the procedures or methods employed for the conduct of such investigations to enable them to achieve their purposes could reasonably be expected to be prejudiced by the release of the records. I should point out that the test of whether the expectation is reasonable is not concerned with the question of probabilities or possibilities, it is concerned simply with whether or not the expectation is reasonable.

A key component of this particular investigation was obtaining information from staff of [name of Institute of Technology]on certain matters. In order to obtain this information express assurances of confidentiality were given to those people who were involved in the investigation and who were interviewed individually. Part of the procedure or method of the investigation, therefore, included the receipt of information, in confidence, through individual interviews with Department officials. Having read the records in this case, and given the nature of the investigation and the relationships within the Institute and between the Department officials and the staff of the Institute, I think it is reasonable to assume that without that assurance of confidence the information would not have been provided. I accept that the information provided in individual interviews was given and received in confidence and that its release would involve a breach of confidence. I also consider that section 21(1)(a) is not aimed solely at current investigations but is apt also to cover future investigations.

I would make the point that it is not the case that persons giving information to an investigator or auditor are always entitled to expect confidentiality and, indeed, the exemption in section 26 of the FOI Act relating to "Information obtained in confidence" would not apply in this case. There is an onus on public servants to co-operate fully in any investigation of a public body the results of which will often be made public. However, the release of records containing information given in confidence to the Department in the course of this particular investigation would, in my view, prejudice the procedures or methods employed for the conduct of such investigations in the future. That is, it is reasonable to assume that if such information was to be made available under the FOI Act, it could be expected to prejudice the giving of information to a further similar investigation at this Institute or to a similar investigation at any other Institute with which the Department has a similar relationship. A perception would be created that similar breaches of confidence would occur in future.

Section 21(2) provides that this exemption does not apply if the body considers that the public interest would, on balance, be better served by granting than by refusing the request. I have, therefore, considered the public interest in this case. There are a number of public interest factors in favour of release of the records. These include the public interest in requesters exercising their rights of access under the FOI Act and the public interest in people having access to records that relate to personal information about them. There is also a public interest in public bodies being open and transparent in matters related to regulation and governance. However, there is a strong public interest in public bodies being able to carry out effective investigations and audits into matters related to regulation and governance the function of which is to ensure good management of public services and finances. In the circumstances of this case I am satisfied that the public interest in granting access to the records does not outweigh the public interest in ensuring that such investigations are not prejudiced.

I do not accept, however, that section 21 applies to record I013. This record was not created in the context of the special investigation. While it obviously was made available to the investigators, it existed in its own right as a separate personnel record and I am satisfied that you should have access to it.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act, 1997 I hereby vary the decision of the Department of Education on your request. I find that all but three records are pre-commencement records to which section 6(5) does not apply; of these three records I find that record I013 should be released in full and that records M019 and M020 are exempt under section 21 of the FOI Act.

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than four weeks from the date of this letter.